Legislating the New Gilead: Implications of the Texas Heartbeat Act

Access to safe abortion, the intentional termination of a pregnancy via surgery or medicinal means, is essential to women’s bodily autonomy and optimal health outcomes. Between 1973 and 2022, this right was guaranteed by the Supreme Court decision, Roe v. Wade. The original decision reflected the need to provide safe access to the procedure, which was commonly done in risky settings.^1–8 Without medical intervention, abortion can result in high rates of injury and death.^9–12 Prior to 1973, women of financial means were able to access to abortion from doctors willing to provide the procedure or travel to countries where it is legal. Other women suffered; many women who died from illegal abortions during that time period were Black and/or low socioeconomic status who self-induce at 12 weeks or beyond out of desperation. After passage of Roe v. Wade decision, deaths from illegal abortions decreased from 39% to 5%.³ From 2015-2019, the rate of unintended pregnancy rate in Europe and North America was about 3.5%. Close to one-half (49%) of these pregnancies ended in abortion.¹³ In 2019, there were an estimated 629,898 legal abortions in the U.S., which translates to 11.3 per 1,000 pregnancies.¹⁴ Of these abortions, 92.2% were performed at less than 13 weeks’ gestation; so-called late term abortions were much less frequent, with 6.9% performed at 14-20 weeks’ gestation, and 1.0% performed later than 21 weeks’ gestation.¹⁵

While a relatively rare procedure, abortion access is heavily contested in the U.S. Conservative forces have sought to overturn Roe v. Wade since its passage. Champions of women’s health care have called the undermining of Roe v. Wade as a slippery slope toward the establishment of real-world Gilead, the Fascist regime of Margaret Atwood’s 1985 novel, The Handmaid’s Tale. Gilead in the novel overthrows the U.S. Federal government, disenfranchising women and creating a class of gestational slaves called handmaids.¹⁶ While still somewhat removed from Atwood’s dystopian landscape, Roe v. Wade was steadily undermined until its reversal in June 2022. Texas’s SB8 or Texas Heartbeat Act, passed just 10 months prior, in September 1, 2021, provided a template to overthrow Roe v. Wade, legalizing a near-total ban on abortion. The law prohibited abortion after 6 weeks, strengthening measures Texas already has in place to limit abortion based on gestational age, the number of weeks after a women’s last known period or conception.¹⁷

Prior to SB8, limits on abortion access were increasingly common in the U.S; 43 other states had laws in place to limit abortion based on either gestational age or fetal viability, defined as fetal development that enables life outside the uterus under normal conditions.¹⁷ SB8, however, stood apart as one of the most restrictive laws on the books. The 6-week time span was 22 weeks shorter on average that other laws that use gestational age and allows no exceptions for pregnancies conceived through rape and incest or that endanger the patient’s life or health.¹⁸ It also provided no exceptions for rape or incest,³⁸ and established legal provisions that enabled citizens to enforce the law.¹⁹